Sunday, July 31, 2016

Stahl v. Hank’s Cheesecakes, LLC

Opinion handed down May 10, 2016

            Hank’s Cheesecakes appeals from the Labor and Industrial Relations Commission’s (“Commission”) decision granting unemployment benefits to its terminated employee, Robin Stahl.[1]  Stahl was terminated from her position following an incident in which she slapped the buttocks of a co-worker for making an insensitive comment in front of her and another co-worker. [2]  The Commission found that this conduct did not rise to the level of misconduct that disqualified her from receiving unemployment benefits. [3] On appeal, and as a matter of first impression as to whether striking an employee automatically constitutes misconduct, the Missouri Court of Appeals for the Eastern District affirmed.[4]
I. Facts and Holding
            On April 8, 2015, respondent Robin Stahl was discharged from her employment as an assistant baker at Hank’s Cheesecakes (“Hank’s”), a family business located in St. Louis County, Missouri.[5]  Stahl was discharged subsequent to an altercation which took place at the restaurant the previous day.[6]  On April 7, 2015, Stahl was talking with a co-worker in her work space when a second co-worker walked by and said, “Are you talking about getting sand in your vagina again?”[7]  Stahl took offense to the comment and immediately reacted by hitting the co-worker who made the remark with the back of her hand on the co-worker’s buttocks.[8]  The entire incident occurred in the frame of approximately three to four seconds.[9] 
            After being terminated for physically hitting her co-worker, Stahl timely applied for unemployment benefits.[10]  Hank’s protested Stahl’s claim for benefits, arguing that Stahl was fired pursuant to her misconduct and was thus disqualified from receiving benefits.[11]  In deciding not to disqualify Stahl from unemployment benefits, a deputy for the Missouri Division for Employment Security (“Division”) determined that Stahl was not disqualified for “misconduct connected with the work.”[12]  Hank’s appealed this decision with the Division’s Appeals Tribunal who subsequently affirmed the deputy’s determination, also finding that “[t]he claimant [was] not disqualified for benefits by reason of the claimant’s discharge from work.”[13] Following the Appeals Tribunal’s decision, Hank’s appealed to the Labor and Industrial Relations Commission, which affirmed.[14] Once again Hank’s has appealed, this time to the Missouri Court of Appeals for the Eastern District, which again affirmed the lower decisions, holding that, “When reviewing the totality of the record before us, we find that the Commission’s findings are supported by competent and substantial evidence.”[15]
II. Legal Background
            Under Missouri’s Constitution, the Commission’s decision will be reviewed to determine if it is “supported by competent and substantial evidence.”[16]  Further, on appeal, a court may reverse, remand, or set aside the Commission’s decision on the following grounds:
(1) That the commission acted without or in excess of its powers;
(2) That the decision was procured by fraud;
(3) That the facts found by the commission do not support the award; or
(4) That there was no sufficient competent evidence in the record to warrant the making of the award. An appeal shall not act as a supersedeas or stay unless the commission shall so order.[17]
            Moreover, a claimant for unemployment benefits will be disqualified if it is determined he or she was discharged for misconduct in connection with work.[18] Misconduct is further defined under the relevant statute[19] and Missouri case law. Generally, however, “The determination of misconduct is dependent on the facts and circumstances of each case.”[20] On the issue of whether the act of any aggressive physical touching of a con-worker constitutes disqualifying misconduct, “[T]here is no Missouri case law directly on point . . . .”[21]
III. Instant Decision
In the instant case affirming the Commission’s decision, the court noted that, “In the absence of express rules and policies, the latitude employed by the employer, and this Court, must involve a healthy dose of common sense when discerning whether an employee’s conduct runs afoul of an employer’s expected standards.”[22]  Here, the court’s “common sense” notions told it that Stahl’s conduct wasn’t enough to “violate her employer’s expectations of no workplace violence.”[23] 
In reaching this conclusion, the court stressed that Hank’s had no workplace rule or policy addressing physical contact between employees, and Stahl’s actions would be reviewed for misconduct by determining if there was “knowing disregard of the employer’s interest or a knowing violation of the standards which the employer expects of his or her employee.”[24]  In analyzing an employer’s expectations under this definition of misconduct, the court looked to the totality of the facts, circumstances, and context in which the event took place.[25] Here, the court identified several factors which led it to believe that this event did not “rise to the level of disqualifying misconduct.”[26]  First, the incident was very quick in that it only took place over the course of a few seconds.[27]  Second, Stahl was reacting to a “vulgar, obscene[,] and sexist” remark and did not make a fist or hit in an area that would cause damage to her coworker.[28] And finally, there was no record of extreme roughness or intense display of force.[29]
          The opinion was not unanimous, however, as Judge Lisa Page noted she would have reversed the decision of the Commissioner in her dissenting opinion.[30] Judge Page emphasized that the purpose of the Missouri Employment Security Law is to “provide economic stability for the citizens of Missouri who have become unemployed through no fault of their own.”[31]  Judge Page further believes it is commonly understood by employers and employees that striking a co-worker is inappropriate work conduct,[32] and had Stahl been a male employee striking a female employee, “[She was] highly skeptical the Commission would have awarded him unemployment benefits.”[33]
IV. Comment
            As a case of first impression regarding whether an employee’s physical act toward a co-worker constitutes misconduct, a totality-of-the-circumstances approach appears to be appropriate. One does not have to strain to quickly think of many situations in which misconduct could occur within the workplace. While bright-line rules are valuable for many aspects of the law, they may not be so desirable in situations where they may bring about the same result for entirely different conduct. For example, the bright-line rule, as proposed by Hank’s here, would have made any deliberate touching of a co-worker per se misconduct under Missouri law.[34] Surely a rule that would analogize a friendly pat on the back or playful gesture to punching a co-worker in the face is overreaching and not an appropriate means of gauging misconduct. Instead, when determining workplace misconduct, the more appropriate course, as was applied here, is looking to the totality of the circumstances and applying “a healthy dose of common sense.”[35]
            All in all, the court here appears to have appropriately applied that “healthy dose of common sense” to the facts of this case. While most physical acts of aggression within the workplace should be treated with a no-tolerance policy, we should not be so unwavering as to look beyond the context surrounding such. Here, Stahl’s co-worker made a vulgar and clearly inflammatory remark directed at two of his female peers and was met with an instinctive slap on the rear. While not a condonable reaction, it seems the majority of our community, as well as common sense, would tell us this was not so far out of line as to be clearly disqualifying misconduct.
-       E.C. Duckworth

[1] Stahl v. Hank’s Cheesecakes, LLC, No. ED 103466, 2016 WL 2731968, at *1 (Mo. Ct. App. May 10, 2016).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id. (there is some debate as to whether the back of Stahl’s hand was used or whether a pan was used).
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id. (first alteration in original).
[14] Id. at *2.
[15] Id. at *6.
[16] Mo. Const. art. V, § 18.
[17] Mo. Rev. Stat. § 288.210 (2012).
[18] Mo. Ann. Stat. § 288.050.2 (West 2015).
[19] Misconduct is defined as:

[C]onduct or failure to act in a manner that is connected with work, regardless of whether such
conduct or failure to act occurs at the workplace or during work hours, which shall include:

(a) Conduct or a failure to act demonstrating knowing disregard of the employer's interest or a
knowing violation of the standards which the employer expects of his or her employee;
(b) Conduct or a failure to act demonstrating carelessness or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or a knowing disregard of the employer's interest or of the employee's duties and obligations to the employer;
(c) A violation of an employer's no-call, no-show policy; chronic absenteeism or tardiness in violation of a known policy of the employer; or two or more unapproved absences following a written reprimand or warning relating to an unapproved absence unless such absences are protected by law;
(d) A knowing violation of a state standard or regulation by an employee of an employer licensed or certified by the state, which would cause the employer to be sanctioned or have its license or certification suspended or revoked; or
(e) A violation of an employer's rule, unless the employee can demonstrate that:
a. He or she did not know, and could not reasonably know, of the rule's requirements;
b. The rule is not lawful; or
c. The rule is not fairly or consistently enforced.

Mo. Ann. Stat. § 288.030.1(23) (West 2014).
[20] Stahl, 2016 WL 2731968, at *4 (quoting Richardson v. Div. of Emp’t Sec., 361 S.W.3d 425, 430 (Mo. Ct. App. 2011)).
[21] Id. at *4.
[22] Id. at *5.
[23] Id.
[24] Id. at *4 (quoting § 288.030.1(23)(a)).
[25] Id. at *3.
[26] Id. at *6.
[27] Id. at *5.
[28] Id.
[29] Id.
[30] Id. at *6 (Page, J., dissenting).
[31] Id.
[32] Id. at *7.
[33] Id. at *9.
[34] Id. at *3 (majority opinion).
[35] Id. at *5.